Supreme Court Justice William M. McKechnie said he would dismiss the Director of Public Prosecutions’ appeal, affirm the acquittal of Mr. C and order no retrial, in a second judgment delivered on 22 June 2015.
The judgment addresses the retrial question after the Court had issued its main judgment in April 2015 on the DPP’s appeal under section 23 of the Criminal Procedure Act 2010. The appeal followed a trial judge’s ruling that excluded evidence. A majority had found the statutory condition concerning the erroneous exclusion of compelling evidence was met, McKechnie said. He had dissented on the question of replacing the principles in DPP v Kenny.
McKechnie argued that section 23 required the Court to decide together whether the statutory conditions for an appeal were met and whether a retrial served the interests of justice. In his view, those were cumulative requirements: if either failed, the Court had to affirm the acquittal. He criticised the decision to consider the legal issue before deciding whether a retrial should be ordered, and described section 23 as unworkable.
He said the trial judge had applied the law as it stood at the time of the 2012 trial. The DPP had not disputed that she was required to follow Kenny, he wrote, and the replacement test had not yet been formulated. Forcing Mr. C to face a retrial after a trial conducted under the then-applicable law would, in McKechnie’s view, be unjust.
Considering the statutory factors, McKechnie said a retrial could be fair and the time elapsed was not a significant obstacle. The DPP had presented no specific evidence showing that the victim’s interests justified a retrial, he said. He concluded that other concerns, discussed in both judgments, weighed against one.
The source is McKechnie’s individual second judgment. It records his proposed disposition: dismiss the appeal, affirm the acquittal and express the view that no retrial should be ordered. It does not state the Court’s final order on the appeal as a whole. McKechnie also said no constitutional challenge to section 23 had been raised, and made no ruling on one.